Two recent New York Times articles shed some interesting light on Judge Sotomayor’s role in Ricci v. DeStefano, the controversial summary-order-later-converted-into-per-curiam–opinion that buried the claims of New Haven firefighters—19 whites and one Hispanic—that New Haven discriminated against them on the basis of race when it discarded the results of promotional exams because it didn’t like the racial composition of those who did well. (The Supreme Court’s decision in the case is expected over the next two weeks or so.) I’ll address one article in this post and the second in a second post.
This article from last Saturday by Adam Liptak explores how the Second Circuit panel handled Ricci and offers some unusual behind-the-scenes insights. Some excerpts (emphasis added):
Almost everything about the case of Ricci v. DeStefano — from the number and length of the briefs to the size of the appellate record to the exceptionally long oral argument — suggested that it would produce an important appeals court decision about how the government may use race in decisions concerning hiring and promotion.
But in the end the decision from Judge Sotomayor and two other judges was an unsigned summary order that contained a single paragraph of reasoning that simply affirmed a lower court’s decision dismissing the race discrimination claim brought by Frank Ricci and 17 other white firefighters, one of them Hispanic, who had done well on the test.…
There is evidence that the three judges in the case agreed to use a summary order rather than a full decision in an effort to find common ground.…
In the end, according to court personnel familiar with some of the internal discussions of the case, the three judges had difficulty finding consensus, with Judge Sack the most reluctant to join a decision affirming the district court. Judge Pooler, as the presiding judge, took the leading role in fashioning the compromise. The use of a summary order, which ordinarily cannot be cited as precedent, was part of that compromise.
A summary order may well be an expedient way for judges to resolve their “difficulty finding consensus,” but I don’t see how it’s an appropriate one. Nor, given that the summary order affirmed the district court, do I see what Judge Sack obtained by the supposed “compromise.” In any event, there’s still a lot more that could be learned about Sotomayor’s role in the matter. (I will note that Liptak’s account cuts against my speculative aside that Sotomayor probably authored the summary order and per curiam opinion.)